19 Ill. 219 | Ill. | 1857
That portion of the decree of divorce which provides alimony for the complainant, was, by the consent of both parties, and is, in terms, and in fact, a stipulation between them. The complainant, by her stipulations, as expressed in that decree, authorized Cavil Hopper to confirm and make absolute the deed which he had previously executed to Joshua Hopper, and which, but for such stipulation and subsequent confirmation, might have been avoided by the complainant. The stipulation referred to as contained in the decree, is thus: “ It is further stipulated, by the consent of the said Cavil Hopper, that in the event that the said Cavil Hopper shall prefer a claim before the county judge, sitting as a Court of Probate, in and for said Greene county, against the estate of Joshua Hopper, deceased, for the consideration named in the deed of conveyance, made by him to said Joshua Hopper, above referred to, and the same shall be allowed, that one-third part of said consideration, to wit: two hundred dollars, the whole being six hundred dollars, as expressed in said deed, and that the said administrator of said Joshua Hopper, deceased, be authorized to pay said two hundred dollars, and the interest which may arise thereon, to the said Polly Hopper, or her heirs, executors, administrators, or assigns, and such payment shall be made a sufficient voucher for said administiator in the settlement of the said Joshua Hopper’s estate, and operate as a bar to any claim to be set up by said Cavil Hopper or by any person claiming by, through, or under him.” The reasonable and fair construction of this stipuation is, that Cavil Hopper might, if he should choose, present a claim for the consideration money mentioned in the' deed, and if allowed by the Probate Court, against the estate of Joshua Hopper, the complainant should be entitled to receive one-third thereof, in lieu of the third interest in the land, which, by the previous provisions of the decree, had been awarded to her. Such claim, being thus presented by her consent, and allowed, must necessarily estop her from attacking that deed afterwards. By consenting that such claim might be presented, in part for her benefit, made her a party to that proceeding, and must necessarily bind her by it. These subsequent purchasers had a right to consider that she thereby waived any objection which she might otherwise have to the deed, and that they might purchase the title thus confirmed, by her consent, with perfect confidence. Nor were they bound to see whether the administrator paid the third of the purchase money to her. Her right to it was secured by the decree, and if she did not follow up that right, and obtain it of the administrator, it was her own fault.
We think the Circuit Court decided correctly, in dismissing the bill, and its decree must be affirmed.
Decree affirmed.